Microsoft Corporation & Anr. vs Karan Puri Prop. Of M/S Puri ...
2014 Latest Caselaw 1281 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 10th March, 2014.

+                               CS(OS) 1015/2007

       MICROSOFT CORPORATION & ANR.                           ..... Plaintiffs
                   Through: None.

                                   Versus

    KARAN PURI PROP. OF M/S PURI COMPUTERS ...Defendant
                 Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     The plaintiffs have instituted the present suit for an order of

permanent injunction restraining the defendant from violating the plaintiffs'

copyright by way of unauthorized hard-disk loading of the plaintiffs'

software on the branded computers sold by him to his customers, and for

ancillary reliefs of delivery-up, rendition of accounts and damages,

pleading:

       (I)     that the plaintiff no. 1 Microsoft Corporation is a company

       organized and existing under the laws of the State of Washington,

       USA and engaged in manufacturing and licensing a range of software

       products, whereas plaintiff no. 2 Microsoft Corporation India Pvt.




CS(OS) No.1015/2007                                                 Page 1 of 7
        Ltd. is its wholly owned marketing subsidiary having its office in

       Nehru Place, New Delhi;

       (II)   that the popular software products developed and marketed by

       the plaintiffs such as MICROSOFT WINDOWS and MICROSOFT

       OFFICE are 'computer programs' within the meaning of Section

       2(ffc) of the Copyright Act, 1957 and included in the definition of

       'literary works' as per Section 2(o) of the Act and the plaintiffs being

       the owner of the copyright in the aforesaid literary works is entitled to

       all the exclusive rights flowing from such ownership enumerated

       under Section 14 of the Copyright Act;

       (III) that the plaintiffs' computer programs are 'works' that have

       been first published and registered in the USA, and as such also enjoy

       protection in India by virtue of Section 40 of the Copyright Act read

       with the International Copyright Order, 1999;

       (IV) that the plaintiffs in the month of January, 2007 learnt that the

       defendant Karan Puri - proprietor of M/s Puri Computers located at

       Civil Lines, Jalandhar and engaged in marketing and selling computer

       hardware (including assembled computers and peripherals) - was

       infringing the plaintiffs' copyrights and other intellectual property


CS(OS) No.1015/2007                                                   Page 2 of 7
        rights by unauthorized hard-disk loading of the plaintiffs' software on

       the branded computers sold by him to his customers;

       (V)    that accordingly the plaintiffs deployed an independent

       investigator to purchase one of such computers being sold by the

       defendant and which confirmed that the defendant was offering his

       customers pre-loaded software of the plaintiffs without charging any

       additional costs;

       (VI) that the computer purchased by the independent investigator

       from the defendant was also inspected by the plaintiffs' technical

       expert and which revealed that software programs of the plaintiffs'

       being MICROSOFT WINDOWS XP (Professional Version 2002)

       and MICROSOFT OFFICE (2002), were present on the computer

       without any authorization from the plaintiffs; and,

       (VII) that since the software programs supplied by the defendant

       were not accompanied by the Certificate of Authenticity Label,

       Holographic CD and the User Manual which are supplied by the

       plaintiffs along with their software, it was evident that the software

       programs pre-loaded by the defendant on the hard-disk of the

       computer sold to the independent investigator were pirated versions.


CS(OS) No.1015/2007                                                 Page 3 of 7
 2.     This Court issued summons in the suit to the defendant on 28.05.2007

and vide order of the same date granted an ex-parte ad-interim injunction in

favor of the plaintiffs. Since there was no appearance on behalf of the

defendant despite due service of summons, the defendant was directed to be

proceeded ex-parte vide order dated 23.05.2008 and the plaintiffs permitted

to lead ex-parte evidence. Upon the plaintiffs closing its ex-parte evidence,

the suit was listed for ex-parte hearing on 22.11.2013, when this Court

stressed the need for the plaintiffs to also examine the independent

investigator and the technical expert, upon whose reports the plaintiffs have

predicated their case for infringement of copyright, and adjourned the matter

for today to enable the plaintiffs to trace there whereabouts. Though the

counsel for the plaintiffs has circulated an adjournment slip for today, but

considering that the ex-parte matter has been languishing for more than six

years now and that locating and examining the independent investigator and

the technical expert would consume further substantial time, I have

nevertheless perused the record to ascertain whether a decree can be passed

forthwith.

3.     The plaintiffs have examined two witnesses to support their case. The

first witness Mr. Achuthan Sreekumar - the constituted attorney of the


CS(OS) No.1015/2007                                                 Page 4 of 7
 plaintiffs, has reiterated in his affidavit the case set out by the plaintiffs in

the plaint and tendered in evidence the Court Certified Copies of Original

Copyright Registration Certificates of the various software programs of the

plaintiffs (including MICROSOFT WINDOWS XP and MICROSOFT

OFFICE). The second witness Mr. B.K. Anand - a Chartered Accountant,

has been examined by way of affidavit to evaluate the damages that may

have accrued to the plaintiffs on account of the defendant's activities. He

has estimated the damages suffered by the plaintiffs on the assumptions that

the defendant must have been selling computers with unauthorized software

programs of the plaintiffs for at least one year and further that the defendant

must have sold, even on a conservative estimate, a minimum of 48

computers in the period of one year. He has thereafter multiplied the market

price of the software programs of the plaintiffs found on the defendant's

computer with the number of computers estimated to be sold (48), and

arrived at a figure of Rs.8,16,000/- as damages.

4.     I would firstly deal with the primary relief of injunction. Though, as

pointed out vide order dated 22.11.2013, it perhaps would have been

desirable that the independent investigator and technical expert employed by

the plaintiffs were personally examined, I do not see the omission to do so


CS(OS) No.1015/2007                                                    Page 5 of 7
 as being fatal to the case of the plaintiffs insofar as I find on the record the

original duly notarized affidavits of the two and the contents whereof

alongwith supporting documents filed as annexures thereto, in my opinion

sufficiently corroborate and affirm the un-rebutted averments made in the

plaint in this regard. There is no reason for this Court to disbelieve the said

affidavits and a technical error, if any, in my opinion must not prevent the

Court from passing an order of permanent injunction preventing

infringement of intellectual property rights, where there is otherwise

sufficient uncontroverted material on record to sustain such a finding.

Moreover, by issuing such injunction, the Court is doing nothing more than

enforcing the law as the activity which the defendant is proved to be

indulging in, there can be no doubt, is illegal. I accordingly pass a decree

for permanent injunction in terms of prayer paragraph (a) of the plaint and

also order delivery-up of the infringing copies of the plaintiffs' software

programs.

5.     Coming to the aspect of damages, though the financial loss computed

is based on certain assumptions, but it cannot be helped for the reason that

the defendant has chosen to remain ex-parte (see Microsoft Corporation Vs.

Yogesh Popat 2005 (30) PTC 425 (Del.) where damages based on a similar


CS(OS) No.1015/2007                                                   Page 6 of 7
 evaluation were awarded). This Court in Time Incorporated Vs. Lokesh

Srivastava 2005 (30) PTC 3 (Del.), while awarding punitive damages of

Rs.5 lakhs in addition to compensatory damages also of Rs.5 lakhs has held

that time has come when the Courts dealing in actions for infringement of

trademarks, copy rights, patents etc., should not only grant compensatory

damages but also award punitive damages with a view to discourage and

dishearten law breakers who indulge in violation with impunity out of lust

for money, so that they realize that in case they are caught, they would be

liable not only to reimburse the aggrieved party but would be liable to pay

punitive damages also, which may spell financial disaster for them. In the

facts and circumstances of this case, I deem it fit to award damages to the

tune Rs.6 lacs with a right to the plaintiffs to demand rendition of accounts

from the defendant in order to ascertain and receive the shortfall, if any, in

the figure awarded above.

6.     Decree Sheet be drawn up in the aforesaid terms. The plaintiffs shall

also be entitled to costs of the suit with the counsel's fees quantified at Rs.

20,000/-.


                                              RAJIV SAHAI ENDLAW, J.

MARCH 10, 2014. aa